For sickened pax, difficult to prove cruise line's negligence

By Mark Pestronk
Mark PestronkQ: Norovirus sickened almost all the members of my agency's cruise group on a recent cruise. They have asked me whether they would have a valid legal claim against the cruise line for a refund or damages. What do you think? By the way, the cruise line made passengers pay their doctor bills from the medical center visits onboard, and they offered no apology or compensation.

A:
The answer is not simple, as it depends on the law of the place where the alleged negligence occurred, the cruise line's passenger contract (aka terms and conditions) and the law of the place where suit must be brought. Contrary to popular belief, it does not depend on the nationality of the cruise line or the country where the ship is registered.

In general, when it comes to claims of negligence, courts everywhere will apply the law of the place where the negligent activity occurred. As you can guess, finding that place can be a challenge, as it depends on exactly what conduct you are claiming to have been negligent.

For example, if the first passenger was diagnosed aboard ship while still in the country of embarkation, and the crew took no action until it was too late, then the negligent act may be covered by the law of the place of embarkation, or the law of the place where the ship was located when the crew failed to act. If that failure occurred on the high seas, then maritime law will apply.

Once you have an adequate theory of negligence under a definite legal standard, you have to look at whether any of cruise line's terms and conditions disclaim such liability. Unfortunately, you can probably find relevant disclaimers of liability in every cruise line's contract.

For example, Norwegian Cruise Line's terms and conditions state, "Guest therefore agrees that the Carrier cannot guarantee the performance of such Medical Services, and that the Carrier shall not be liable for losses or injuries arising therefrom. Persons or entities providing Medical Services shall be entitled to make a proper charge for any service performed for or on behalf of the Guest."

The majority of cruise lines' terms and conditions state that Florida law will govern the relationship between the parties and that you must either sue or arbitrate only there. In general, Florida courts uphold cruise lines' terms and conditions, so the cruise line's disclaimers may well negate any possibility of recovery.

Even assuming that you could assert a valid legal theory under the applicable law of the country or state, you face multiple obstacles of proof. How, exactly, are you going to prove that every sick passenger contracted norovirus and not some other disease?

Finally, you have the question of damages. Although your group certainly enjoyed the cruise less than they would have, you really cannot quantify the loss well, and each passenger's loss may be different.

Although I am setting forth the myriad problems that your group would face, I do not mean to discourage the group from trying to find a lawyer willing to take the case on a contingency fee and try to obtain a good settlement. Your group can find several lawyers that might be interested just by Googling "South Florida cruise injury attorneys" or the like.

Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at mark@pestronk.com. 
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